Can I Dismiss an Employee for Refusing a Vaccine?

A business or workplace may still consider a vaccination requirement is appropriate based on a work health and safety risk assessment under the Health and Safety at Work Act.

Employers can complete a work health and safety risk assessment. This will allow them to determine what COVID-19 controls are appropriate, which could include implementing an employer vaccination requirement. Consultation requirements under the Health and Safety at Work Act apply to conversations with all workers. This includes conversations on vaccination requirements.

​

Guidance on undertaking a work health and safety assessment is available from WorkSafe New Zealand (including the updated public health advice). An employer could conclude that alternative controls are more appropriate than requiring vaccination to perform specified work. In this case, the employer should implement the alternative controls. If a vaccination requirement was in place, it should be rescinded.

​

Alternatively, an employer could conclude that there is a basis for an employer-vaccination requirement. In this case, the employer could implement an employer-vaccination requirement (alongside any other controls that are appropriate to reduce the risk and transmission). Employers must engage with employees in good faith. This includes when reviewing a work health and safety risk assessment. If there are any changes as a result of the assessment, employers must be clear what their transition process will be.

​

Usual employment law and processes continue to apply to any employment processes arising from a risk assessment. Employers should take care to follow a fair and reasonable process before making any decisions and work in good faith with employees and unions before deciding on any employment outcomes. Employees will be able to bring a personal grievance if they feel they have been unjustifiably dismissed or disadvantaged as a result of a decision their employer has made about vaccination.

​

There may be situations where a third party imposes a condition on an employer, for example only allowing vaccinated workers onto its premises. This may arise where an employer’s workers provide services to a third party, for example onsite security or catering services. As long as these vaccination conditions are not unlawful, or in breach of any agreements between the parties, the employer will need to ensure its workers are vaccinated to keep doing business with the third party.

​

Where this situation applies, we recommend that employers engage with the third party to ensure that in imposing this requirement they are meeting their work health and safety duties to so far as is reasonably practicable, consult, co-operate with, and co-ordinate activities. This means that an employer may need to consider which of its workers engage with the third party based on their vaccination status. An employer may also rearrange their business to ensure that only its vaccinated workers engage with the third party.

​

High rates of vaccination remain critical to preventing severe disease and death, especially in vulnerable people. In addition, it affords some individual protection against infection and transmission of the virus and broad population protection with high vaccination uptake. While two doses are likely to provide a good degree of protection against severe disease from COVID-19 variants for some time, a third dose or boosters are likely to offer greater protection.

Employers, employees and their representatives should communicate early and openly about vaccination. The duty of good faith in employment relationships apply to employees. Consultation requirements under the Health and Safety at Work Act also apply to conversations with all workers, not just employees. If there are any practical barriers to accessing vaccination, employers should help address these. Some employees may have individual health concerns or other reasons for needing support.

​

Employees may have questions about the vaccine. Employers can help them by directing them to official sources for accurate information. Before any vaccine is approved for use in New Zealand, it must meet international standards and local requirements for quality, safety and efficacy. This means employers do not need to debate or provide detailed answers to questions